United States v. Ponce-Garcia ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40337
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE PONCE-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-991-1
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December 10, 2002
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Ponce-Garcia entered a guilty plea to one count of
knowingly transporting an undocumented alien within the United
States. He reserved the right to challenge the district court’s
denial of his motion to suppress. The district court sentenced
Ponce-Garcia to serve twelve months and one day in prison and
three years of supervised release.
Ponce-Garcia contends that the Border Patrol agents did not
have reasonable suspicion to stop the vehicle he was driving.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-40337
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We review the district court’s factual findings for clear
error, and its legal conclusions, including whether there was
reasonable suspicion, de novo. United States v. Espinosa-
Alvarado, 302 F.3d 304, 305 n.1 (5th Cir. 2002). A Border Patrol
agent on roving patrol may stop a vehicle “only if the agent is
aware of specific articulable facts” that support a reasonable
suspicion that the vehicle is being used for criminal activity.
Espinosa-Alvarado, 302 F.3d at 305-06. We consider the
“‘totality of the circumstances’” in making this determination.
Id. The factors we consider include: (1) the characteristics of
an area, (2) the agent’s experience with criminal activity,
(3) the proximity of the area to the border, (4) the usual
traffic patterns of the road, (5) the recent illegal trafficking
in the area, (6) the behavior of the driver, (7) the appearance
of the vehicle, and (8) the number, appearance and behavior of
the passengers. Id. No single factor, nor the absence of a
particular factor, controls the conclusion. Id.Ponce-Garcia’s vehicle activated two road sensors as it
traveled north on a dirt road at 2:00 a.m. The road is located
twenty-two miles from the border and is known as a route that is
used to circumvent a permanent checkpoint. The vehicle was
riding low to the ground despite the number of occupants
visualized. Experienced Border Patrol agents who are familiar
with the area, the sparse traffic that travels that particular
road at that time of day, and the illegal activity that occurs
No. 02-40337
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there, and who did not recognize Ponce-Garcia’s vehicle made the
stop. When the agents began following his vehicle, Ponce-Garcia
maneuvered his vehicle onto the shoulder of the road and toward a
fence before driving back onto the road. The evidence
established that persons who are transporting illegal aliens and
who are attempting to evade detection often drive off the road
and into the fence to enable an escape.
The facts viewed in the totality of the circumstances
support the conclusion that the Border Patrol agents had a
reasonable suspicion to make the stop. See Espinosa-Alvarado,
302 F.3d at 305-06. Accordingly, the judgment of the district
court is AFFIRMED.